This article was posted by Kathleen Kapusta on employmentlawdaily.com on 24th September 2015. In nearly every state in the US, the law presumes that the relationship between the employer and the employee is at-will. This is to say that it can be terminated any time provided that the two parties have agreed. However, this is never the case since the termination of that relationship has to be procedural based on the employment contract and the state employment laws. The employment laws govern the right and duties of employees and the responsibility of the employer to the employee. They play the role of keeping the employee safe from cases such as discrimination while at the same time protecting the employers interests.
American Employment laws or labor laws began long ago as a response to the public outcry due to oppressive practices during the industrial revolution. They address issues such as establishing minimum wages per hour, compensation of injured workers, the creation of standard work week and discrimination issues. Statistics shows that many cases that have been taken to courts have to do with minimum wage violation and discrimination based on myriad grounds (U.s. labor and employment laws , 2009). Violation of minimum wages led to the formation of labor protest movements that would fight for workers rights. For example, three years ago, a labor protest movement was formed by fast-food workers in New York City
Discrimination at work has also been a focus recently. Employees can be illegally discriminated on grounds such as religion, national origin, disability, race, sex among others. It also seems to be taking another dimension. Discrimination is also reportedly taking another dimension such us, one's views on social media or ones complains about work on social media and transgender workers sexual anatomy. This poses the question whether an employer should inquire into transgender workers sexual anatomy, relationships or, transition records.
As a matter of fact, all the information relating to a transgender employees sexual anatomy, her familial background and relation all medical and psychological records that relates to her gender transition is the most private in nature. A federal magistrate in Michigan finds that it would be the most harassing and oppressive to require its disclosure at any time in a case that was recently taken to court by Equal Employment Opportunity Commission (EEOC) on behalf of an employee who had been working in a funeral home.
In July 2013, the employee had informed the employer and her coworker than he intends to undergo a transgender transition from a male to a female. She informed them since the next time he will appear at work, she will be a woman. However, two week later, the employer called him and informed her that what he intended to do was unacceptable and fired her. The employer-based the argument on the fact that the law has not protected this discrimination under Title VII. Although the court ruling did not declare the funeral home to have violated this provision, the EEOC claim on gender stereotyping claim still held.
Additionally, the court pointed that the purpose of the discovery was immaterial. Whether the alleged stereotyping by the funeral home originated from the fact that the employee was a transgender was not important. What was necessary is whether the funeral home fired her when she started exhibiting characteristics or qualities that her employers are perceived to be inconsistent with the original male gender. Therefore, the court denied the employer of her request to discover the familial relation gender transition and such details since they were discriminative. It rejected the employers contentions that establishing the establishing the actual employee gender during the employment period was important since that would translate to the stereotype claim that EEOC had against them.
Employing people based on their gender inhibits the productivity of a person and the thus the general productivity of the firm and the nation as a whole. Some people are better placed for some jobs than others. How best one performs on a job does not rely on the gender but one's capabilities and passion. As an employer, gender should not be a consideration but performance, after one is already employed, should be. In the above context, for example, the funeral home should not be so much into whether the employee undergoes the gender transition to the extent of firing her. Their concern should, instead, be whether the employees expected performance level reduced when she underwent the transition.
The domestic and the global business environment have to embrace policies that bring equality to all their employees. Gender and sexual orientation should not be a factor to consider while employing and setting their employees free. According to Bennett Alexander & Hartman (2011), research shows that organizations that have adopted such policies are linked with higher productivity since there is increased openness, greater job commitment, improved workplace relationships increased job satisfaction improved health outcomes especially among the transgender. Many organizations too are changing their written non-discriminative policies to include the transgender one too.
Employmentlawdaily.com Retrieved 1-10-2015 from http://www.employmentlawdaily.com/index.php/news/employer-cant-inquire-into-transgender-workers-sexual-anatomy-relationships-or-transition-records/
Bennett-Alexander, D., & Hartman, L. P. (2011.). Employment law for business. Boston, Mass: Irwin/McGraw-Hill.
U.s. Labor and employment laws. (2009). Washington: Bureau Of Natl Affairs.
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